RIAI News Alert | Summary of 5 Senior Counsel opinions on BC(A)R S.I.9

by Bregs Blog admin team

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On 24th September 2014 the RIAI circulated a “précis” or summary, to their Practice Members, of various Senior Counsel opinions on S.I.9 and S.I.80 . The précis was written by David Phelan of Hayes Solicitors. The five Senior Counsel opinions had been prepared on behalf of the various stakeholder groups involved in the negotiations with the Department of the Environment on the Building Control (Amendment) Regulations. The introduction to the précis stated:

“Balance of Opinions indicate that liability is not increased and a Certifier can rely on Ancillary Certificates.”

However if one reads Phelan’s full document it is clear that he said no such thing. It is unclear if this statement regarding liability was written by Phelan or added by a third party. Phelan’s text includes some of the following  comments [which we have paraphrased] from the Senior Counsel opinions:

  •  A Design or Assigned Certifier engaged to carry out work under the Regulations undertakes a very serious responsibility and considerably more than the limited qualified Opinions which could be given under the previous regime.
  • Issuing a Completion Certificate in circumstances where the appropriate criteria have not been met may in itself be an act of negligence.
  • The certification given by the Assigned Certifier involves significant responsibilities. The Certifier must certify compliance with plans, calculations, specifications etc. when the Certifier may not have had input into those documents.
  • There is nothing to qualify the nature of the inspections carried out. Building owners may rely upon this to try and pin liability upon Certifiers for failure to inspect a particular element of the building that they may not have physically been able to.
  • In relation to the Design Certificate and the Ancillary Certificate, it appears that the certifier is certifying not just that he or she has exercised reasonable skill, care and diligence but that other members of the design team have too. As such, the certifier is taking responsibility for the work of others and therefore exposed to liability.
  • Reliance on Ancillary Certificates does not represent any significant protection for the Certifier.
  • It is implicit in the Certificate of the Assigned Certifier that the Assigned Certifier must have satisfied himself or herself as to the general competency of the Ancillary Certifiers and the Assigned Certifier is responsible to procure and annex the Ancillary Certificates to the Completion Certificate.
  • The reference to reliance upon Ancillary Certificates in the Completion Certificate means that the Assigned Certifier will require that Ancillary Certificates be given by every other trade or profession involved in a particular project. The Ancillary Certificates may therefore run into several volumes.
  • Failure to co-ordinate the inspection activities of others and co-ordinating procurement of ancillary certification will give rise to a legal liability.
  • There may well be insurance implications, with a significant prospect that at the very least insurance companies will wish to reflect the increased risk in premium.

From these opinions one could take a very different view; a view that the balance of opinions of S.I. 9 indicate that liability is increased and a Certifier cannot rely on Ancillary Certificates; that it is poorly drafted legislation that some of our most eminent Senior Counsel and solicitors cannot make head or tail of. Nobody knows what this law may actually mean but most are agreed on one thing – it will take the Courts to sort it  out. The test case could be any diligent professional caught on the wrong side of a lorry load of contaminated aggregate or a badly sealed flue.

Could this be you?

The BRegs Blog strongly recommend that our readers read the full document even though this will be quite time-consuming. We wish that we could give a more definitive  analysis of the five Senior Counsel opinions but that is beyond the scope of our resources.

Extract to follow:

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EXECUTIVE SUMMARY BY DAVID PHELAN

In this memorandum, I have summarised the various Counsels’ Opinions in relation to the Building Control (Amendment) Regulations. As I indicated at the outset of this memorandum, I would recommend that any interested party would read the actual Opinions as there is detail and nuance in them which by necessity is not captured in the summary.

You asked that I would include an executive summary identifying in short form the views ultimately reached by the various Counsel in relation to Building Control (Amendment) Regulations 2014. I will do so here. However, I would reiterate what I have said immediately above, which is that people should read the more detailed summary of the Counsels’ Opinions contained in the rest of this document and indeed read the Counsels’ Opinions themselves.

INTRODUCTION

I have attempted to do that in this note.  However, there are a few very important points which I must make at the outset, as follows:

  • Each Counsel will have issued the Opinion to their instructing solicitor for the relevant client. As such, although I understand that the respective clients appear to have shared and exchanged the various Counsels’ Opinions, it is still important that I make the point that each Counsel will have given their Opinion only to their instructing solicitor and their own relevant client.
  • I am approaching this on the basis of an understanding that each of the respective clients agreed to share the Opinions they had been furnished by their own Counsel and, on that basis, that neither they nor their Counsel would have any objection to this summary note being prepared.
  • While I have attempted to summarise key points of the Opinions in this document, the reality is that the only way in which a person can establish and properly understand the actual views of the relevant Counsel is by looking at the actual Opinions themselves. As one would expect,  the Opinions  all  go  into  some  detail  in  terms  of  explaining  the  respective Counsels’ understanding of matters, relating some of the instructions they have received and explaining the rationale for any  conclusions reached. Furthermore, each of the Opinions make clear in their own different ways the fact that these are not necessarily straightforward, black and white issues, which lend themselves to very neat, concise Opinions and conclusions. The Opinions, and the underlying issues, are detailed, nuanced and often complicated. It is simply not possible to replicate that detail, those nuances and those difficulties in this note.
  • Where a Counsel gave more than one Opinion, it is necessary to read all of that Counsel’s Opinions together.
  • Finally, what I have outlined below is my own assessment of what appear to me to be the key issues in each of the different Counsels’ Opinions. In preparing this note I have focused on what appears to me to be perhaps the key issue for architects, which is the issue as to whether the Regulations (or before that the Building Control (Amendment) Regulations 2013) impose additional liability on architects in the context of providing Statutory Certificates under the Regulations, as compared with the regime which pertained prior to the introduction of the Regulations. I have to say it may well be the case that any of the respective Counsel might disagree that I have identified the key points in that regard, but I have attempted to do so faithfully and objectively.

GAVIN RALSTON SC

  • The 2014 Regulations are not intended to alter the existing common law liability on architects. They do no more than require the building owner to engage suitably qualified property professionals to carry out a “full service”. The real onus of the Regulations is on the building owner. An architect engaged to carry out work under the Regulations undertakes a very serious responsibility and considerably more than the limited qualified  Opinions which could be given under the previous regime.
  • On the question as to whether the issuance of Certificates under the new regime impose any greater liability on the Assigned Certifier than already exists under the law of negligence, Mr Ralston answers it in two parts. Firstly, the Certificates are actually issued to the Building Control Authority and the Building Control Authority itself would not suffer any damage in consequence of an inaccurate Certificate.  Of course, any third party (such as a purchaser) may be able to make a claim but not as a result  of the Certificate but rather upon negligence (including the possibility of negligence in issuing a Certificate). Secondly, in the absence of negligence for which an architect would be liable, the issuance of a Certificate would not in itself be a ground of liability. However, issuing a Certificate in circumstances where the appropriate criteria have not been met may in itself be an act of negligence.

DENIS MCDONALD SC

  • In relation to the undertaking to be given by the Assigned Certifier, the second part of the undertaking (which relates to the certification given by the Assigned Certifier) involves significant responsibilities. The  Certifier must certify compliance with plans, calculations, specifications etc when the Certifier may not have had input into those documents. Furthermore, there is nothing in the Certificate to qualify the nature of the inspection to be carried out by the Certifier in the undertaking. One can therefore envisage that building owners may rely upon this in the future to try and pin liability upon Certifiers for failure to inspect a particular element of the building or works notwithstanding that the Certifier may not have physically been able to do so.
  • In relation to the Design Certificate and the Ancillary Certificate, it appears that the architect is certifying not just that he or she has exercised reasonable skill, care and diligence but that other members of the design team have too. As such, the architect is taking responsibility for the work of others onto himself or herself and therefore exposed to liability.
  • Mr McDonald is not convinced that the reference to reliance on Ancillary Certificates in the Design Certificate represents any significant protection for the Certifier.
  • The reference to reliance upon Ancillary Certificates in the Completion Certificate means that the Assigned Certifier will require that Ancillary Certificates be given by every other trade or profession involved in a particular project and the Ancillary Certificates may therefore run into several volumes.
  • There may well be insurance implications, with a significant prospect that at the very least insurance companies will wish to reflect the increased risk in premium.

PETER BLAND SC

  • In the Certificate of Compliance on Completion, the Assigned Certifier does no more than confirm the exercise of his own skill, care and diligence. It does not constitute a warranty as to the accuracy of the Ancillary Certificates of others.
  • The Assigned Certifier is entitled to rely on the exercise of reasonable skill, care and diligence by the Ancillary Certifiers in the context of the reference in the Completion Certificate to the Inspection Plan.
  • It is implicit in the Certificate of the Assigned Certifier that the Assigned Certifier must have satisfied himself or herself as to the general competency of the Ancillary Certifiers and the Assigned Certifier is responsible to procure and annex the Ancillary Certificates to the Completion Certificate.
  • The modifications to the form of the Completion Certificate (as compared to the 2013 Regulations) are reasonably effective in addressing the concern as to whether the 2014 Regulations extend the potential liability of the architect who signs the Certificate so as to amount to a warranty in respect of the works of others. The wording of the Certificate may still be less than perfect, but the Assigned Certifier should not fear being found liable for the negligence of an Ancillary Certifier.

DAVID NOLAN SC

  • The final Certificates in the 2014 Regulations are a significant modification of the previous Certificates.
  • The final draft Certificate of Compliance on Completion (the one in the 2014 Regulations) qualifies the role of the Assigned Certifier having regard to the work of others. The Assigned Certifier is no longer certifying the work of others, although it does have a role in co-ordinating the inspection activities of others and co-ordinating procurement of ancillary certification. Failure to so co-ordinate will give rise to a legal liability.
  • The final Certificate of the Assigned Certifier is based upon he or she exercising reasonable skill, care and diligence at all times and so long as the Assigned Certifier has exercised reasonable skill, care and diligence, legal liability has been tempered.
  • The new wording of the Certificates in the 2014 Regulations are a very significant improvement from those appended to the 2013 Regulations. Necessary modification and improvement and clarifications have been achieved so as to lessen the broad legal liability previously imposed.

JOHN TRAINOR SC AND SADHBHANNA NI FHLOINN BL

  • Their Opinion, from September 2013, relates to the 2013 Regulations.
  • They consider whether in the future third parties might seek to hold builders liable by reason of a certification error.
  • A failure to comply with the undertaking and/or an error in certification in the Completion Certificate would not per say appear to impose any additional statutory liability on the builder for which he/she could not have previously been pursued.
  • In considering whether in the future third parties might seek to hold builders liable by reason of a certification error, they conclude that an argument in favour of civil liability is highly stateable and that the risk of a court imposing civil liability in respect of an error in certification is thus very real.  They have strong concern that Section 21 of the Building Control Act 1990 would not  be  sufficiently  strong  to  exclude  the  possibility  of  civil  liability  for  damages  for  misrepresentation  (arising  from  a  certification  error)  being imposed on a builder.
  • The prospect arises that in actions against Design Certifiers for errors in certification (against based on negligent misrepresentation) one might see such parties applying to the court for leave to seek contribution or indemnity from builders in appropriate cases.
  • The 2013 Regulations did present considerable potential risk to builders who have been subjected to additional potential liabilities over and above those extant under the regime prior to the 2013 Regulations

Read David Phelan’s full document: Memo re Senior Counsels’ Opinions 15 Sept 2014

Other posts of interest:

Summary of Legal Posts- BC(A)R SI.9

10 ‘must-read’ posts for Certifiers | S.I.9

Opinion: “the architectural profession is largely united in opposition to S.I.9″

SI.9 Is Defective | RIAI EGM Consensus 

Friday Follow | Eoin O’Cofaigh FRIAI

S.I.9 and Employees: Eoin O’Morain FRIAI

S.I. 9 and Insurance Claims: Deirdre Lennon MRIAI

S.I. 9 and Construction Products: Orla Hegarty MRIAI RIBA

Vivian Cummins MRIAI: Are small architectural practices under threat from S.I.9?

Shrapnel and Spin – Caomhán Murphy MRIAI

Eoin O’Cofaigh: missed opportunity? BC(A)R SI.9

News Alert | RIAI EGM Report

 

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